Why Supreme Court’s ‘Eye-Opener’ Tip to the Prosecution Is an Embarrassment

In a recent judgment, the Supreme Court ended up giving ideas to the prosecution on how to prevent the accused from using the default bail law in their favour.

In a judgment delivered on May 1, the Supreme Court not only denied the right to default bail to the accused on the ground that a charge sheet filed before the expiry of the mandatory period, without obtaining sanction, is not incomplete, but ended up giving ideas to the prosecution on how to prevent the accused from using the law in their favour.

For the Supreme Court, which claims to be the guardian of our civil liberties, to appear to be openly aligned with the state, even when the imbalance of power between the state and the citizen is always tilted in favour of the state, must be an acute embarrassment.

But the division bench comprising Chief Justice of India D.Y. Chandrachud and Justice J.B. Pardiwala, in its judgment – authored by Justice Pardiwala – in Judgebir Singh @ Jasbir Singh, Samra @ Jasbir & Ors vs National Investigation Agency delivered on May 1, had no compunction in offering its unsolicited observation on a “grey area”, which it claimed, could help the prosecution to prevent the accused from claiming their right to default bail.

In this case, the accused allegedly travelled on a motorcycle without a number plate and refused to stop at a security check. In the process of running away, the accused allegedly dropped a bag containing a mobile phone and two hand grenades.

The final report under Section 173(2) of the CrPC was filed in the court of SDJM, Ajnala, Punjab, on November 15, 2019, which was the 161st day from the date of arrest of two of the appellants, who were the first to be arrested on June 8, 2019.

They were charged with having committed offences punishable under the relevant sections of the Indian Penal Code, Unlawful Activities (Prevention) Act, 1967 and Explosive Substances Act, 1908. Both had challenged the dismissal of their appeals by the Punjab and Haryana high court, which had declined to release them on default bail under Section 167(2) of the CrPC.

The Punjab police applied to the court of the additional sessions judge, Amritsar, for extension of time to complete the investigation invoking the proviso to Section 43D (2)(b) of the UAPA on September 4, 2019. The application seeking extension was filed two days prior to the expiry of 90 days from the date of arrest.

Section 43D(2)(b) of the UAPA empowers the competent court to extend the period of 90 days as contemplated under Section 167 of the CrPC up to 180 days.

While the appellants-accused contended that provisions of the UAPA and its 2008 Rules make the grant of sanction, time-bound, the prosecution and the Supreme Court did not agree. The sanction for prosecution was granted on March 17, 2021, beyond the period of 180 days, which expired on March 10, 2020. The default bail application was instituted on December 14, 2020.

The bench made a subtle distinction between sanction and investigation, saying that obtaining sanction from the competent authorities is not part of investigation. Sanction, the bench held, is required only to enable the court to take cognizance of the offence. The court may take cognizance of the offence after the sanction order was produced before it, but the investigation is deemed to be completed the moment the final report is filed by the prosecution, the bench held. If the investigation is concluded within the prescribed period, no right accrues to the accused concerned to be released on default bail, the bench clarified.

But what the bench observed in Paragraph 76 of the judgment must surely be an eye-opener for those who believed that the Supreme Court would always function as a sentinel on the qui vive, and never convey an impression of advising the prosecution on how to deprive the right to default bail from accruing to the accused.

The bench pointed out that by the time the additional sessions judge, Amritsar, passed an order extending the time, the period of 90 days had already expired. Indisputably, the bench said, there was no charge sheet before the court on the 91st day.

The bench then asked: “What would have happened if the appellants Jasbir Singh and Varinder Singh had preferred an application seeking statutory/default bail under Section 167(2) of the CrPC on the 91st day, ie, on September 7, 2019. The application seeking extension of time was very much pending. The additional sessions judge could not have even allowed such application promptly, ie, on or before the 90th day without giving notice to the accused persons. …The only error or lapse on the part of the appellants Jasbir and Varinder Singh was that they failed to prefer an appropriate application seeking statutory/default bail on the 91st day. If such an application would have been filed, the court would have had no option but to release them on statutory/default bail. The court could not have said that since the extension application was pending, it shall pass an appropriate order only after the extension application was decided. This litigation is an eye-opener for the NIA as well as the state investigating agency that if they want to seek extension, they must be careful that such extension is not prayed for at the last moment.”

Had the bench observed that it is an eye-opener for the accused not to miss the opportunity to file the default bail application immediately after the expiry of the 90-day period after the arrest, it would have enhanced the credibility of the court as a sentinel on the qui vive. The accused might have been charged with commission of serious offences, but in the eyes of the law, they are innocent till proven guilty.

The bench makes it clear that the right to default bail would be extinguished where the accused fails to apply for default bail when the right accrues to him, and subsequently, a charge sheet or a report seeking extension of time is preferred before the magistrate or any other competent court.

It is the timing of the judgment, apart from its eagerness to fill what it describes as a grey area, which shows it in a poor light. The judgment claims that it has taken note of another relevant recent judgment, passed by another bench of the court, in Ritu Chhabaria vs Union of India, that the right of an accused to seek default bail cannot be defeated by filing an incomplete charge sheet. But the bench held that the appellants-accused cannot rely on it to fortify their submissions, as the facts in Ritu Chhabaria were altogether different. The bench reiterated its view that in this case, unlike in Ritu Chhabaria, the charge sheet was filed after the entire investigation was completed.

The likely embarrassment to the court is apparent, when the same bench of the court decided on May 1 to constitute a three-judge bench to recall Ritu Chhabaria, based on a recall application by the Union government that the high courts have, in many cases, relied on it to grant default bail to the accused. The CJI-led bench’s decision has rightly led to concerns that it sets a wrong precedent, as it ignores the need to invoke the review jurisdiction of the court, and seeks to recall it by listing it before another bench.

If the bench’s claim that the facts in Ritu Chhabaria are distinguishable from other similar cases is right, then why this haste to recall it, when the respondents before the high courts which relied on it, have a remedy of correcting it in the Supreme Court?